Impact of same-sex marriage rulings on strictscrutinyinreligious exemption cases

Fri Apr 10 08:43:16 PDT 2009

Roger, I completely understand your argument.  But what about the religious
liberty that has been denied for so many years by the state's refusal to
authorize same-sex marriage?  As Marci points out, we tend to forget that
many people and churches feel quite strongly in favor of gay and lesbian
equality; various congregations desire to celebrate same-sex unions and have
done so even where they are not legally recognized.  So why have gay people
and gay-supportive congregations not been allowed in most places to follow
their "religious dictates or callings in an integrated fashion"?  Do you
find this infringement of religious conscience equally troubling?  If not,
what is the principled distinction? 

For most religious conservatives, religious liberty still seems to be a form
of special privilege, or a one-way street: exemptions from secular laws when
those laws uphold gay and lesbian equality, but tacit (or active) approval
when the laws prevent gay-friendly people and congregations from fully
enacting their beliefs.  To borrow your words, "who [has] benefited exactly"
from laws excluding gays from civil marriage?  Certainly not the couples and
their children who were denied the protection of the laws.  The state "could
have easily accommodated [these] beliefs in a live and let live fashion,"
but in most places it has not -- in no small part due to the demands of more
conservative religious believers that it not do so. 

Steve Sanders  

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Roger Severino
Sent: Friday, April 10, 2009 1:54 AM
To: religionlaw at lists.ucla.edu
Subject: RE: Impact of same-sex marriage rulings on
strictscrutinyinreligious exemption cases

>> when churches step outside that sphere in order to play (as Roger puts
it) a "robust role in public life," as they have a right to do, aren't they
necessarily expected to honor the public laws? 

But therein lies the problem Steve.  Religious institutions and individuals
often are not "stepping outside" of their religious roles when engaging in
public endeavors, but are merely following religious dictates or callings in
an integrated fashion.  For example, Catholic Charities in Boston did not
begin providing adoption services around 100 years ago out of mere
philanthropy, but out of sincere religious conviction.  But unfortunately,
by 2005 it could no longer "honor the public laws" because the public laws
would not in turn respect its deeply-held religious beliefs that prevented
it from placing children under its care in same-sex households.  Catholic
Charities did, in a way, honor the laws by withdrawing from the adoption
business entirely instead of violating the law or sacrificing conscience.
But didn't religious liberty suffer as a result?  And who benefited exactly?
Certainly not orphan children who lost a major source of family placements
(especially in hard cases).  And same-sex couples looking to adopt are
limited to using the exact same adoption agencies available to them as
before the controversy.  The state could have easily accommodated Catholic
Charities' beliefs in a live-and-let-live fashion and I would not have
called that a granting of special privileges or a conversion of Catholic
Charities into a law unto itself.  I think a similar analysis applies to
marriage and suggests why houses of worships should still be able to rely
only on their theology when choosing what relationships they will solemnize
through a dual religious and civil ceremony.  Ironically, this dual
arrangement likely furthers a stated interest of courts that approve of
same-sex marriage--that of increasing the number of committed couples that
enter into civilly-recognized marriages. 

-Roger Severino

  _____  

From: stevesan at umich.edu
To: religionlaw at lists.ucla.edu
Subject: RE: Impact of same-sex marriage rulings on strict
scrutinyinreligious exemption cases
Date: Wed, 8 Apr 2009 23:06:04 -0700

The protected sphere for religion should involve that which is actually
religious.  Thus, churches should not be compelled to dispense sacraments to
those of whom they disapprove.  But when churches step outside that sphere
in order to play (as Roger puts it) a "robust role in public life," as they
have a right to do, aren't they necessarily expected to honor the public
laws?  

Roger seems to be arguing for special privileges -- freedom not only to
dispense sacraments in the religious sphere, but also freedom to serve as
arbiter of whose marriages may be solemnized in the public sphere.  But the
freedom to practice religion cannot mean that, when it enters the public
square, a religious institution gets to remain a law unto itself.  For
purposes of civil marriage, solemnization is not an inherently religious
activity.  Thus, why should a church be allowed to pick and choose which
marriages it will solemnize in the state's name?  Isn't the power to perform
solemnizations a privilege, not a right? 

Imagine we're in a state that doesn't allow same-sex marriage, but a house
of worship insists that it be allowed to create such marriages (and have
them fully recognized by the state) because failure to do so would violate
its freedom of conscience?  How is that different from letting churches turn
away those whom the law deems entitled to solemnization?  In both cases,
religious freedom is being used to demand a special niche where civil rules
are bent in order to conform to religious doctrines.

Steve Sanders

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Roger Severino
Sent: Wednesday, April 08, 2009 9:28 PM
To: religionlaw at lists.ucla.edu
Subject: RE: Impact of same-sex marriage rulings on strict
scrutinyinreligious exemption cases

Art, I am curious to know why you think same-sex marriage states will not
(ever?) impose new regulations on the power of clergy to solemnize civil
marriages.  As for the religious liberty interests at stake, it is again,
not a question of direct coercion, but of whether religious institutions
that remain true to their religious identity will be allowed to retain a
robust role in public life when that identity conflicts with the priorities
or preferences of the state.  Religious solemnization of civil marriage is
just one manifestation of this issue--partnerships with religious
institutions and government in the provision of social services (like
adoption or marriage counseling) is another, and the list goes on.  Another
concern I had in mind was the fact that if the state does move to strip
clergy of their solemnization power, it may do so selectively.  That is,
only certain houses of worship would literally get the state seal of
approval to solemnize marriages while others would not and the state's
choice of winners and losers will turn precisely on each religious
institutions' theology of marriage.

-Roger Severino  

(Disclaimer: all opinions expressed are mine alone)

In a message dated 4/7/09 11:11:32 PM, rseverino1 at hotmail.com writes:

what is to stop Iowa from stripping dissenting religious institutions, and
only such institutions, of the power to solemnize *civil* marriages? 

That seems unlikely to me, but what if it does -- how does that deprive a
religious institution of its *religious* liberty?

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